ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Monday, July 22, 2013

Some Fireworks to Mark
the End: Part II

On July 18, 2013 the Khieu defense team got a letter
published in a local newspaper. The title of the letter is ‘Khieu Samphan Is
Forced to Remain Silent.’ The purpose of the letter, as it seems, is Khieu’s
public answer as to why he has invoked his right to remain silent and therefore
will not subject himself to a cross-examination by the prosecution and the
civil parties that he promised he would.

The prosecution was already peeved by the invocation of the
right prior to the letter (See below ‘Prosecution
Presses On’); the letter sent the prosecution flying right off the handle.
Let’s take a close look at what pushed the prosecution to the edge. First, the prosecution was chagrined by
the defense’s postulation that the bench admitted “thousands” of the
prosecution’s documents into the record and paid no heed to the “many concerns”
expressed by the defense. I generally agree with the prosecution that this is
not an accurate representation of what has taken place during the trial in Case
002/01. It is a broadly sweeping remark and anyone familiar with the record
knows that this simply has not been the case. With that said, if I were the
prosecution, I would not be relying on the DC-Cam executive management’s
performance to prove that this allegation of the Khieu defense is without merit,
as doing so would be akin to leaning on the part of a 3-legged table with the
missing leg (See below ‘Can Youk Chhang
Save the Reputation of His Documentation Angkar’ (Feb 4, 2012); ‘The House that Youk Built’ (Feb 11, 2012)). Being, essentially, in agreement
with the prosecution, I note that it is interesting that it is the Khieu
defense – and not that of Noun – that wrote this letter. It would have been
much more grounded in what has actually transpired during this trial if the
Noun defense had written that letter. Without looking at the record, what
immediately springs to mind is the bench cutting off the Noun defense’s inquest
into K-5 or the Bamboo Wall project. I do not know where the Noun counsel of
the day were going with that inquest but there was plenty of great material in
that (one such thing is the provincial and district-level PRK officials’
pilfering of the Vietnamese and Soviet aid (given Vietnam was on life support
from the Soviet Union at the time it was all Soviet aid by different names)
intended for K-5 that caused the collapse of that project; it could have been
argued that it was the lack of the KR heavy-handed governance that caused the
pilfering that, in turn, made the project collapse and the black market swell
up with the pilfered goods)). Second,
the prosecution was outraged by the Khieu defense’s statement that “the judges
also decided to deny the possibility of a real discussion on the mountain of
evidence admitted.” The prosecution characterized this statement as “the
defense living in a parallel reality.” It is impossible to meaningfully agree
or disagree with the defense’s statement or the prosecution’s rebuttal without
knowing what the definition of “a real discussion” is within the context of the
criminal process. Given that “a real discussion” is not a legal category, its
definition is unavailable to me. It is therefore my opinion that this can be
argued one way and the other and who the winner is will depend on the charisma
of the arguer, rather than the math of the argument. Where I part ways with the
prosecution is calling the defense’s performance “slopp[y].” The simple truth
is that they are overwhelmed by that “mountain of evidence.” The undisputed
fact that they are is due to a number of undisputed factors that from the
get-go stacked the process against the defense: (1) millions of dollars and
efforts of a number of dedicated individuals were expended on getting the
prosecution its evidence for 30 years prior to the trial; most of these
individuals and institutions were not looking for exculpatory evidence (it is
nonsense if they say that they did); in fact an entire Khmer Rouge ethos was
created on the basis of the bits and pieces of evidence and tremendous
extrapolations made on their basis by these individuals of decades of mulling;
(2) the prosecution ended up with top-notch KR scholars; the defense got one on
a part-time basis and only for one team; they now have none (unless we pretend
that Soun Visal is a KR expert); (3) the prosecution has run a well-oiled
machinery from the start while the Khieu defense started out with Jacques
Verges who raised much hell and did absolutely no work and So Sovann who raised
no hell, did no work and given my knowledge of the man’s ability from other
legal efforts and given his performance in court (that is a matter of record)
was incapable of producing any coherent legal work; most literally years were
wasted by these lawyers until the current team was put in place; the Khieu
defense was a visible underdog for a long spell and they did come from behind
to where they are today (and Anta Guisse’s recent performance is a testament to
that (See below ‘Some Fireworks to Mark
the End: Part I’)); the time wasted should be imputed to the Defense Support
Section who allowed the hiring of someone with the competence level of So
Sovann and tolerated the shenanigans of Jacques Verges for way too long; (4) by
the time people in the prosecution like Will Smith and Tarik Abdulhak had
developed a reasonable grasp on what they were looking at, the Khieu defense
was still rocking as a dingy in a storm; while the sea is much calmer now, the
Khieu defense has yet to fully overcome the effects of that storm. For all
these reasons, I would refrain from using the word ‘sloppy’ to characterize the
Khieu defense’s present performance. Third,
the prosecution found it “amusing” that the Khieu defense now took issue with
the separation (it is called ‘separation’ in the Internal Rules, not severance,
so I am going to go with this term) of the proceedings in Case 002. I cannot
possibly disagree with the prosecution here. That’s simply because they happen
to be right and there is no disagreeing with what is right. Except that I do
not find the Khieu defense’s statement to this effect “amusing;” I find it
preposterous. In 2011, when separation was ordered, I was expecting a perfect
storm to come from the defense for a variety of reasons (See below ‘Brief Amicus
Curiae; In Support of Neither Party’ (Apr 29, 2013)). Surprisingly,
nothing happened – all the 4 defense teams consented to the separation order.
Michael Karnavas was on one of those teams and I thought he might have
something up his sleeve that I could not think of (albeit it was hard to
imagine what that could have been). In 2012, when the prosecution appealed
certain aspects of the separation, I expected the defense (all 3 teams) to
finally wake up and attack the separation order (See below ‘Trial Chamber’s Frankenstein Monster: Res
Judicata and Judicial Notice v Presumption of Innocence’ (Nov 22, 2012).
Again, nothing of significance happened (See below ‘Brief Amicus Curiae; In
Support of Neither Party’) other than the defense teams opposing the
prosecution’s vision of what the separation should be, not the separation
itself which is what they should have been opposing. At this time I knew Karnavas
had nothing up his sleeve and that he simply dropped the ball. And it is now that the Khieu defense has finally
woken up to the absolute horror for their client that the separation has
been???!!! I agree with the prosecution that it is pretty outrageous and the
Khieu defense cannot get a pass on this one as being a counsel requires being
able to think just a tad faster than what is going on two years now. The
prosecution is correct: the Khieu defense’s position on this matter is
untenable (except for the use of the expression ‘the dice is loaded’ which is
great and which does not get nearly enough play; trompe l'oeil to describe the prosecution's maneuvering was colorful too). Fourth, the prosecution sought to show that the Khieu defense
became derelict from their duty enshrined in the Basic Principles on the Role
of Lawyers. The prosecution cited articles 12 and 14 in support of their
contention. The language of article 12 is vague and cannot stand on its own;
the prosecution completely misread – inadvertently or otherwise – the language
of article 14. Even if the prosecution’s reading was to be accepted, they would
have to show that speaking to the press on what is a matter of public record
violates the “recognized standards and ethics of the legal profession” in
Cambodia. Unless the prosecution knows something I do not, there is no and
never has been an ethical standard in Cambodia that precludes lawyers from
discussing with the press what was said in open court. The prosecution’s
argument on the matter is without merit and feels like an exercise in
stretching the law to fit the facts before us. The prosecution employed a
mountain of epithets but words like ‘scandalous’ in law actually mean something
and cannot be thrown around willy-nilly. With that said, I am in agreement with
the prosecution’s contentions more than I am not. In fact, there are things in
the Khieu defense’s letter that the prosecution did not mention that I find
equally objectionable. The frontrunners of these are “race against death
conducted in the guise of a criminal trial” (internal quotations mark omitted)
and “this show trial.” This is so ridiculous that it merits no extensive
commentary other than to say that what has transpired is most definitely not a “guise”
and not “a show trial” (albeit the irregularities have been numerous) as
Cambodia is a world champion of processes that mascaraed as criminal trials and
of show trials and anyone familiar with the Cambodian standards of justice
knows that this accusation applied to this trial rings hollow.

The clarity of what happened is inescapable: the Khieu
defense ran out of options of pursuing their defense theory, used the only
weapon they had in their arsenal by advising their client not to testify, and
went public with their explanation as to why.

While I agree – to a greater extent – with the prosecution’s
arguments, I believe they should have been advanced in the same forum in which
the defense raised their contentions – the newspaper. This is to say that the
prosecution’s arguments are, for the most part, sound but they picked the wrong
venue to advance them. A request for sanction under Rule 35 of the Internal
Rules is without merit and is entirely ridiculous as there is nothing in Rule
35 that prevents the defense from restating that which was said in open court
and expressing their opinion about the fairness of the process. With that said,
most of the Khieu defense’s contentions made in the letter are either untenable
or flat-out absolute nonsense. Thus, in my opinion, the Khieu defense was
well-within its rights when it made them but their content happens to be embarrassing
(not in the legal but in the plain sense of the word ‘embarrassing’) on this
occasion. I believe that to save face the Khieu defense should retract the
letter but the trial court should not sanction the Khieu defense and rule the
prosecution’s motion to this effect inadmissible for lack of merit within the
meaning of Rule 35. The prosecution then should submit its reply to the same
newspaper which published the Khieu defense’s letter and possibly to a Khmer
language newspaper to ensure that the public is informed in Cambodia is watching these proceedings) of
the prosecution’s position as the only way of getting the prosecution’s message
to the public (no one (there is a miniscule population segment that does but it
does not detract from my use of ‘no one’) in Cambodia is watching these proceedings)).

Sunday, July 21, 2013

Some Fireworks to Mark the End: Part I

Steve Heder’s testimony continued on throughout the week. A
tremendous amount of time was wasted on the prosecution’s objections. The
prosecution, however, can hardly be blamed at least for the bulk of them. Many –
not all (the rest were Raynor’s regular shenanigans that the President
correctly cut off with prejudice) – of the objections were necessary due to
Noun’s international counsel Victor Koppe either being unable to grasp or
deliberately ignoring the fact that Heder was summoned to testify as a witness,
not as an expert. Koppe seemingly felt that by doing so he would be able to get
more exculpatory statements out of Heder. This did not happen. In fact, what
did happen was Koppe having a tiff with the bench and giving the prosecution
plenty of ground to launch successful objections from. This type of
representation does nothing other than causing prejudice to Koppe’s client,
Noun Chea. So far as I am concerned, this examination tactic did not yield
Koppe a single shred of usable testimonial evidence. Most importantly, Koppe
did not get to ask Heder the most important question of all: ‘Mr. Heder, isn’t
it true that most of your life until now has been spent encouraging the
prosecution of my client?’ Nor did he ask the second most important question (for
which there was an opening): ‘Mr. Heder, isn’t it true that the reason you were
invited to visit Democratic Kampuchea in 1979 was because you were perceived as
a supporter by the Democratic Kampuchea government, in the same manner Malcolm
Caldwell, Elizabeth Becker and Richard Dudman were who preceded you on a trip
to Democratic Kampuchea?’ Heder is a prominent Khmer Rouge expert but these two
questions would have been critical to the bench’s understanding of the sources
of his knowledge, as well as juxtaposing the bias he might have had in the
1970s with the bias he developed at some point in the 1980s. Much wasted
opportunity and much time spent on Koppe pouting instead of accessing useful
testimony.

Khieu’s international co-counsel Anta Guisse took a very different
approach to cross-examination. She did understand the bench’s definition of ‘witness’
and drew very few objections from the prosecution. This gave her an opportunity
to make the best of Heder’s presence in court to the extent she had sufficient
knowledge to access the parts of Heder’s knowledge that might be seen as
exculpatory for her client. Guisse’s strategy appears to have been to have Heder
confirm that much in Democratic Kampuchea was left to the local administration
and was directed from the Center only in broad strokes and that her client did
not have the status of a senior leader between 1975-79. She got some of this confirmed
and much of it simply placed in doubt (and this is where indubio pro reo
beautifully comes in) while the rest was not confirmed. In the context of
doubt, it is amazing how little we still know about the much discussed Office
870. During my interview with Khieu in 2004 I asked him about Office 870 and
whether he had run it. My notes show that he said he did not and that Pong did.
Then I asked what Office 870 was responsible for and the answer given to me was
that Khieu was not aware of the full extent of Office 870’s responsibility.
Sadly, after millions of dollars of the last 7 years of investigations this is exactly what we know about Office 870 –
just what we knew before the inception of this court. Heder offered a theory (the
prosecution desisted from objecting here, presumably, for Guisse’s overall good
behavior and Guisse got a free hand with using Heder as an expert) that Office
870, on occasion, could have been just Pol Pot. This is an odd theory as simply
because in modern times someone signs as ‘Justice Sector Support Team’ does not
mean that that person is the Justice Sector Support Team but it simply means
that s/he signed the letter on behalf of that team. Other theories abounded,
many quirky. One of them was that, to many, Office 870 was the same thing as “Washington”
which simply connotes the highest of government without indicating a particular
institution. Then there was the confusion regarding ‘Office 870’ and ‘Committee
of Office 870’ and whether it was one and the same thing or two different
things. Then there was S-71 and what that meant within the structure of Office
870, the thematic divisions of Office 870, and much more. There was nothing new
or enlightening in any of this; not anything that was not known to those with
an interest in the matter prior to the inception of the court, anyway. While of
no interest from the historical viewpoint, Guisse masterfully located or
stumbled on a goldmine in this part of Heder’s testimony. The upshot here that
the bench might see is that not only is Khieu’s role in regards to Office 870 not
clear, what Office 870 was remains shrouded
in mystery (I agree with Heder that this is exactly
how it was meant to be). Now that this has been said in court Guisse can put
can this line in her closing statement: ‘How can the prosecution accuse my
client of participating in something (Office 870) that no one knows exactly
what it was and how it related to the allegations of criminal acts?’ Beautiful
work on Guisse’s part.

Monday, July 15, 2013

The Prosecution Presses On

Much material for a single week: Noun’s personal rebuttal of the prosecution’s presentation of documentary evidence against him, Khieu’s withdrawal of an offer to subject himself to cross-examination, and Steve Heder’s extensive testimony.

Noun decided to personally (although the entire time he read from a paper the authorship of which is unknown) take on a rebuttal of the documentary evidence the prosecution presented against him the week before. The prosecution’s delivery was what it was supposed to be – structured and coherent. Noun’s rebuttal was a weak gumbo of ‘blame it on all on Pol’ coupled with a couple of generic denials, odd comparisons (the Snowden reference was absolutely priceless) and an attack on the use of copies of documents, academic publications and interviews. Noun did not mention either Thet Sambath’s book or movie. Those things are a smoking gun and simply trying to sweep them under the rug will not deny them the tremendous weight the trial court is likely to assign to them. Nor will saying things that directly contradict the statements made to Thet and now available on film. Noun did not go beyond the general statements and, unlike the prosecution, did not offer the court his views on as to why particular pieces of evidence adduced against him should not be given weight by the court. Of course, the only reason the proceedings were exposed to something like the sources of evidence part of Noun’s rebuttal is because the trial court has impermissibly confused these proceedings beyond the point of no-return as to the applicable rules of evidence. It has been my contention throughout this process and made in various capacities that the law on the matter could not be clearer: Article 321 of the Criminal Procedure Code states that “[u]nless it is provided otherwise by law, in criminal proceedings all evidence is admissible,” with “[d]eclaration[s] given under the physical or mental duress” (which is a constitutional prohibition) being the only type of evidence explicitly prohibited by statute. The rest of what is being applied now is the trial court’s invention which it had no authority to make due to the little known concept called the rule of law. Parties have taken advantage of this aberration from the rule of law on countless occasions throughout these proceedings and Noun’s most recent statement is but one example of that.

Khieu refused to be cross-examined. What does this even mean in the Cambodian legal process? Let us see what the law which binds the trial court has to say on the matter. Article 325 states that first the presiding judge gets to question the accused. In doing so he is permitted to “ask any questions which he believes to be conducive to ascertaining the truth.” Then it is the prosecution’s turn followed by the defense and “all the parties that may be authorized to question the accused.” Presumably, the parties are permitted to “ask any questions which [they] believe[] to be conducive to ascertaining the truth” insofar as these questions are permitted by the presiding judge. It is quite uncomplicated a rule. It is understood, however, that under the law that established the ECCC (KRT Law + codified KRT Agreement) there are rights that derive from articles 14 and 15 of the International Covenant on Civil and Political Rights (‘ICCPR’). Article 14 of the ICCPR contains a right “[n]ot to be compelled to testify against himself or to confess guilt.” How does this right work with the procedure under art. 325 of the CPC? In short, not too well. The fact of the matter is that article 325 was written with a right against self-incrimination in mind but not with a sweeping right not to be compelled to testify in the proceedings against himself at all. The trial court has grappled with this issue throughout these proceedings and now appears to be of the opinion that said article 14 right protects from being compelled to be cross-examined by the parties but does not protect from being compelled to be examined by the bench. It is a very odd ‘neither fish, nor fowl’ interpretation of said article 14 right for which the trial court hardly deserves approbation. Be that as it may, Khieu finally decided to avail himself of that right thus avoiding being cross-examined by the prosecution (and the civil parties but I do not believe Khieu was overly worried about being cross-examined by them). The prosecution was “stunned” by Khieu’s invocation of said article 14 right and rushed to show that it was ready to bend over backwards to accommodate Khieu and induce him to waive said article 14 right. Besides some technical inducements the prosecution came back with a 15-year old girl’s ‘you promised we would be together forever’ type of statement which showed that it was peeved by Khieu’s sudden “change of heart.” To beef up the 15-year old girl’s snivel the prosecution showed some teeth when it cited what it called “authorities” (when is the prosecution going to learn that the ICC, ICTY, ECHR and others’ case law does not bind this court and is not a compelling authority insofar as the law that governs this court is concerned? I understand that ‘never’ is the answer to this but it does not hurt to keep asking the question) that permit the trial court to “draw adverse inferences” from an accused’s selective invocation of the right. Khieu responded in person and through his international counsel with a litany of grievances to compel the satisfaction of which he presumably invoked the right. Khieu’s statement was confusing, yet coherent; the same cannot be said about his counsel’s statement which was a complete stream of consciousness (no it is not the translation; it is just as gruesome in French). The trial court let the counsel’s diatribe drag on for what felt like days from which we learned that the Khieu defense is very unhappy with the trial court (something we have known for some time now and most definitely since the Khieu defense’s diatribe at the severance hearing ordered by the Supreme Court).

Dr. Steve Heder – masquerading as ‘Mr. Steve Heder’ for the reason of the prosecution’s little ploy to get him in as a witness, as opposed to an expert --, a Democratic Kampuchea scholar of note, testified. With the exception of the prosecution’s redundant and highly annoying requests to confirm what he had written in his book (it is understood that the prosecution is simply reading all this into the record but what is the answer that is expected to a question of ‘does what you wrote on so-so in your book correctly reflect what you meant to say?’ ‘ah, no, it does not; I lied’ or ‘ah, no, it does not; I had trouble phrasing it in my native language and here’s what I really meant to say’), Heder’s testimony was a big help to the prosecution’s case (particularly his interview with Khieu). It will be interesting to see what the defense comes at Heder with next week.

Overall it has been the most interesting week in a long time, thanks to the cessation of the seemingly endless stream of people who had 15-minutes worth of testimony but who were kept on the stand for days at a time and way past their value as witnesses (provided it was there to begin with).

Sunday, July 7, 2013

Not Sure About the Rest But There Appears to Be a Consensus that Khieu Samphan Did Like That Soup

The prosecution has kept pressing on to establish that (a) the
execution policy was known to Khieu Samphan and Noun Chea; (b) that Khieu
Samphan and Noun Chea had every reason to know about executions of evacuees
from the cities, particularly when they were conducted in the vicinity of their
Udong office; and (c) that Lon Nol military were executed at Toul Po Chrey.

On (a), the prosecution produced a witness who was a
seamstress at a sewing unit in Phnom Penh and who attended Khieu and Noun’s
political trainings. She testified to one of them (there is no agreement as to
which one) referred to the purge of the North Zone Secretary Koy Thoun. The
witness kept referring to Koy Thoun as “Koy Khoun” which clearly meant that she
was not familiar with the man’s name but she somehow miraculously remembered a
fleeting mention of him as a traitor at one of the trainings that had taken
place 36 years ago. The human mind is a very curious thing but in this case the
answer to this curiosity, perhaps, should be sought in the Co-Investigating
Judges’ interview methodology. Regardless of how the miracle of remembering a
name the witness cannot even pronounce correctly after the passage of 36 years transpired,
the witness’ testimony is hardly of any probative value as she had given
contradictory statements as to which one of the two accused mentioned Koy Thoun
and the purge of him. Although of no probative value to the criminal process,
it was of some interest to those of us who were not aware that there had been a
sizable sewing unit outside the Orussey Market. And of course, to those of us
who are planning on having Khieu Samphan over for dinner – we will know where
to get the recipe for his favorite soup.

On (b), the prosecution came up with a clear scheme of
attempting to prove executions of evacuees that took place in the vicinity of
Khieu and Noun’s Oudong office and that were ordered by a person whom the
prosecution believes to be Noun’s relative. Not bad. The prosecution found
perhaps the lowest-ranking member of the village militia who testified to
escorting some people to a place where he handed them over a group of Khmer
Rouge military who tied up some of them. The witness’ statement to the
Co-Investigating Judges was lavished with the gruesome detail of how executions
were conducted. Upon the examination in court he did not appear to have been
able to testify to anything other than (i) taking some evacuees to some place;
(ii) handing them over to the Khmer Rouge military; (iii) seeing the military
tie up some of them; and (iv) hearing the one-two-three count (as opposed to
blindfolds, one executioner per victim, pre-dug grave pits, etc). All this was
circumstantial evidence and it only depended on the quality of the defense’s
refutation. The defense came up with very weak material. It is very difficult
to buy the defense’s line of defense which, essentially, would have us believe
that the persons the witness escorted were simply being transferred to another
village to avoid overcrowding. Why so pompously then? Why the military? Why the
ligaments? To prevent those people from clapping from the excitement of being
relocated to a new village? And the defense’s suggestion that the count was to
help the people be in sync while they marched to another village is completely
idiotic. Cambodians do not do anything weird (meaning what the English-speakers
do not do) with the one-two-three count. Anyone familiar with the culture knows
that it is never used for things like let’s go to a restaurant, one-two-three!
Not degrading these proceedings to the level of idiotic would be a good rule of
thumb for the defense – if they have nothing to counter the prosecution’s
assertion with, it is best to leave it unchallenged than challenge it with something
as moronic as the military counting one-two-three to keep the people in
lockstep with each other while moving them to another village. Regardless of
these regrettable setbacks for the defense, it did establish one uncomplicated
thing – the witness is not an eye-witness to the executions (provided there were
executions). The prosecution is in a tight spot regarding this as witnesses do
have a right against self-incrimination which they will use the second the
prosecution places them somewhere near what might have been an execution site.
The defense clamors that eye-witnesses are the only ones who can attest to the
existence of an execution. So, what the prosecution is looking for here is a
witness with plausible deniability to being a hands-on killer but who had some
sort of business being present at the execution (some sort of a water boy, for
lack of a better idea) and who is willing to testify to the execution having
been perpetrated by others.

On (c), the prosecution produced a witness who claimed to
have seen 2,000 Lon Nol military to be taken to be executed at Toul Po Chrey.
The witness was Lon Nol military himself and claimed that the only reason he
was still alive was because he was not fast enough to get a seat on the one of
the trucks that took his colleagues out for execution. There are a couple of
curious things about this witness’ testimony. One, he went to a meeting to
which the Khmer Rouge invited the Lon Nol military voluntarily and out of mere
curiosity. Two, he testified that no one ordered him or any of his former
colleagues on to the trucks and that the Khmer Rouge made absolutely no effort
to round up those who did not get a seat on the trucks and try to get them to
the putative execution site later and execute them elsewhere. Three, he testified
to two of his friends escaping the executions and then being captured within
days while he was left completely alone by the Khmer Rouge. Four, the witness’
reply of “he was re-educated at Toul Po Chrey” to the defense’s question as to
whether his friend that he was there with was still alive was odd. But, the
prosecution did establish that there were trucks taking members of the Lon Nol
military somewhere and likely in the direction of Toul Po Chrey. Then there is the
rumor of what might have happened. It is not bad circumstantial evidence but
the prosecution needs to produce truckloads of it as circumstantial evidence,
as it is the case in most criminal jurisdictions, has to be overwhelming to
amount to a conviction on its own.

Monday, July 1, 2013

Thet Sambath: Noun Chea's Kryptonite

And Thet Sambath's material is back in the courtroom. I wrote my comments on its initial appearance in the courtroom on December 27, 2011. Back then the Noun Chea defense embarrassed itself by revealing that it was blissfully unaware of either Thet's film or his book (both of which are based on the same research material). Now only a year and a half since those comments and the revelation there is not a single person left on the Noun Chea defense team who was on it in December, 2011 (talk about turnovers). The present incarnation of the Noun Chea defense team appears to have done a bang-up job getting itself up to speed with these proceedings. That, or it is keeping a good face on things and steering clear of statements that might cast doubt on its competence, a skill that is sometimes more valuable than knowledge itself. This time the Noun Chea defense knew -- the pain of finding a way to rebut Thet's evidence seemed etched on Noun Chea's current International Co-Counsel Victor Koppe's face. It is doubtless that Koppe wished that he could have gone back in time and advised his client not to ever talk to Thet about as much as what he likes in his cereal. But that time is gone and Koppe has no other choice but to face the music Thet had been orchestrating for the few years leading up to the establishment of this court. What can Koppe do to rebut this evidence? Back in 2011, his client tried to argue that he did not know he was being filmed. Not a strong argument but will Koppe have to bring it back for lack of alternatives?

The prosecution's presentation shows that Thet's testimony forms a large part of their case against Noun Chea. Surely, there are a couple of scribblings on S-21 confessions that the prosecution attributes to Noun Chea. But the prosecution's sole witness on those is a convicted felon Duch whose credibility is not what someone would call 'ironclad' and there is more than one chink in his armor that the defense can exploit. There is some good material from other sources that links Noun Chea to the strategy of "seizing people" (the Khmer Rouge had the habit of moving the population of the areas from which they retreated with them leaving such areas unpopulated to make it difficult for the enemy to gain a foothold in them thus making them susceptible to recapture by the Khmer Rouge) but if the defense plays its cards right, there will be nothing besides Thet's evidence for the prosecution to get Noun for the executions. That is unless the prosecution manages to drive its point on Noun Chea and Pol Pot being a co-equal head of the Democratic Kampuchea government and to knock out this Brother No. 1-Brother No. 2 nonsense that has been perpetuated in the Khmer Rouge scholarship for years now (and by now one would imagine that the scholars would have heard about the communist principle known as 'democratic centralism' and figure out that this is how the place was run). If the prosecution does, it will be possible to successfully argue the totality of Noun's command responsibility and to, essentially, present Noun Chea to the bench as Pol Pot, by a different name (did the prosecution say "alter ego"? that's fair enough).

The amount of the prosecution's case that hinges upon Thet's research prompts another observation. For years the West has been paying millions of dollars to an archive that wants to be a research center (if it only could keep the researchers out, however), the Documentation Center of Cambodia (DC-Cam). Yet, besides the S-21 documents that DC-Cam has collected there is nothing in its almost 20 years of research that the prosecution could use. And this is not as if DC-Cam did not try. In fact, its staff did interview Noun but those interviews are, to the greater extent, entirely unusable. Thet's research, on the other hand, that has not cost the West millions of dollars is very much usable. The prosecution's heavy reliance on Thet's research and almost zero reliance on that of DC-Cam flies straight in the face of DC-Cam trying to monopolize 'the business of the Khmer Rouge.' There might be a lesson for the international donors who are so eager to fund institutions and so reluctant to fund individuals in all of this.